Murlidhar - (1.) THE only point in this revision is whether where the police has submitted a final report in a case exclusively triable by the court of Session a Magistrate can straightaway take cognizance and summon the accused. Learned counsel for the applicant has relied upon a number of decisions. In Ram Chandra v. State of U. P., 1970 AWR 826 a Division Bench of this Court interpreted the Supreme Court decision in Abhinandan Jha v. Dinesh Mishra, AIR 1968 S. C. 117 to lay down that in case the Magistrate was not inclined to agree with a final report of the police he could take cognizance but this had to be u/Sec. 190 (1) (c) CrPC. In Krishna Kant Tewari v. State of U. P., 1980 AWC 513 a learned single Judge of this Court following th?s aforesaid Division Bench held that in case of a final report the Magistrate could take cognizance only u/Sec. 190 (1) (c) but the words "or suspicion" in Sec. 190 (1) (c) having been dropped in the new Code such cognizance was limited to only two types of cases viz. (1) information received from any person other than a police officer e.g. a protest petition filed by the aggrieved party or some one else, and (2) upon his knowledge that such offence has been committed. THE learned Judge went on to quash the order of the Magistrate who had proceeded to Cake cognizance on the final report without any other material before him. In Sahu Ram v. State of U. P., 1978 ACC 150 another learned single Judge held that in a complaint case regarding an offence exclusively triable by the Court of Session In which evidence u/Sec. 202 CrPC had been taken the Magistrate could not commit the case without calling upon the complainant to produce all his witnesses and examine them on oath.
(2.) WITH great respect the Division Bi;nch decision in Ram Chandra's case (supra) must be held to be no longer good law. In Abhinandan Jha's case (supra) the Supreme Court clearly laid down that if the Magistrate disagreed with the final report submitted by the police he could direct further investigation u/Sec. 156 (3) CrPC and if after this further investigation the police again submitted a final report he could take cognizance u/Sec. 191 (b) CrPC. The relevant observations are as follows :- "If ultimately the Magistrate forms tile opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence u/Sec. 190 (1) (b), notwithstanding the contrary opinion of the police expressed in the final report." As regards cases where he does not chooses to direct further investigation the observation of the Supreme Court was :- ......There is certainly no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. Under those circumstances if he still suspects that an offence has been committed he is entitled notwithstanding the opinion of the police to take cognizance u/Sec. 190 (1) (c) of the Code. That provision in our opinion is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute or the police either want only or through bona fide error failed to submit a report setting out the facts constituting the offence............It is open to the Magistrate to take cognizance of the offence under Sec. 190 (1) (c) on the ground that after having due regard to the final report and the police records placed before him he has reason to suspect that an offence has been committed." Reference to Sec. 190 (1) (c) in these observations led to a number of decisions requiring the Magistrate to have material other than the police report before him for taking cognizance as well as to the procedure required to be followed which it was held must conform to the procedure for cases whose cognizance has been taken either under Sec. 190 (1) (a) or Sec. 190 (1) (c). The procedure for cases taken cognizance of under Sec. 190(1)(b) were totally ruled out in these decisions. The position has now been clarified by the Supreme Court in H. S. Bains v. State, 1980 AWC 619 (SC). Abhinandan Jha's case was interpreted as laying down that in case of a final report the Magistrate had no jurisdiction to direct the police to submit a chargesheet but it was open to the Magistrate to agree or to disagree with the! police report. Further that if he came to the conclusion that further investigation was necessary he might make an order to that effect under Sec. 156 (3) CrPC. Their Lordship went on to observe that the Court had undoubtedly observed in Abhinandan Jha's case "that the Magistrate could take cognizance under Sec. 190 (1) (c). They, however, categorically stated that this was a mistake. The relevant observations in this regard are :- "We do not have any doubt that the reference to Sec. 190 (1) (c) was a mistake for Sec. 190 (1) (b). That appears to ba obvious to us." Their Lordships also repelled the argument that since the case was under the old Code the Court must have meant Sec. 190 (1) (c) because that provisions under the old Code included the words "or suspicion". They observed : "We do not agree with this submission. Sec. 190 (1) (c) was never intented to apply to cases where there was a police report under Sec. 173 (1). We find it impossible to say that a magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and mot upon a police report merely because the Magistrate and the police arrived at different conclusions from the f acts. The Magistrate is not bound by the conclusions arrived at by the police............" Their Lordships, however, pointed out referring to Tula Ram v. Kishore Singh, AIR 1977 SO 2401 that in case of a final report following investigation under Sec. 156 (3) in a complaint case the Magistrate's jurisdiction to take cognizance as in a complaint case did not get exhausted and he could proceed to take cognizance under Sec. 190 (1) (a) and follow that [procedure. After this decision the Division Bench case of this Court referred to above as well as the other cases following that line must be held to be no longer good law and the Magistrate's order in the present case must be held to be an order taking cognizance under Sec. 190 (1) (b) CrPC, Of course this means that the [procedure to be followed will also be that applicable to cases instituted on a police report. The revision, therefore, fails and is hereby dismissed. The stay order dated 9-10-1980 is vacated. -- Revision dismissed.;